Satterly v. Plaisted

• Decision Date: 28 May 1976
• Citation: 384 N.Y.S.2d 334,52 A.D.2d 1074
• Parties: Kenneth P. SATTERLY, Appellant, v. Ruth PLAISTED, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 334

384 N.Y.S.2d 334

52 A.D.2d 1074

Kenneth P. SATTERLY, Appellant, v. Ruth PLAISTED, Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 28, 1976.

Weston H. Palmer, Penn Yan, for appellant.

Taylor & Taylor, Paul Taylor, Penn Yan, for respondent.

Before MARSH, P.J., and SIMONS, MAHONEY, DILLON and WITMER, JJ.

MEMORANDUM:

In this action by the purchaser for specific performance of a contract by defendant and her deceased mother to convey a 50-acre farm to him, plaintiff appeals from the determination of trial term that no contract exists because there was no agreement as to price or as to the boundaries and extent of the land to be conveyed and the contract is subject to there being not less than 150 feet lake frontage, as determined by a survey to be made, and the survey made shows that the frontage is only 142.16 feet. We reach a contrary conclusion.

The contract fixed the price as $66,000 and provided, 'Terms: $18,000.00 or $20,000.00 down (at the option of seller) with the balance to amortize monthly', etc. The evidence is undisputed that before the contract was signed by either party the words 'or $20,000.00' were stricken out of the original (Ex. 1). The broker testified that the sellers signed the contract in his presence. Inexplicably the court excluded exhibit 1 from evidence because it bore the sellers' initials opposite the above-stricken words but a duplicate thereof (Ex. 2, attached to the complaint and received in evidence) did not bear such initials. Not only was the provision 'or $20,000.00' not a part of the executed contract, but even if it were, there was nothing indefinite about it--the sellers had the right to compel performance at their option, and nothing remained to be negotiated (1130 President St. Corp. v. Bolton Realty Corp., 300 N.Y. 63, 68, 89 N.E.2d 16, 18).

Trial Term also erred in declaring the contract voidable by the sellers because the lake frontage is less than 150 feet. That provision was in the contract for the benefit of the purchaser, the plaintiff, and he has the right to waive it (Born v. Schrenkeisen, 110 N.Y. 55, 59, 17 N.E. 339, 341; Litchfield et al. v. Irvin et al., 51 N.Y. 51, 58--59; Mall v. Sloan, 256 App.Div. 891, 9 N.Y.S.2d 646, affd. 281 N.Y. 619, 22 N.E.2d 176; Gorman v. Gorman, 283 App.Div. 250, 251--252, 128 N.Y.S.2d 658, 659). Moreover, if the reduction of the lake frontage was caused by defendant and her mother, they cannot assert that fact to vitiate the contract. A seller cannot defeat his contract obligations by creating a condition contrary to its terms (see Schwartz v. Donnenberg, 10 Misc.2d 490, 168 N.Y.S.2d 31).

The farm was owned by Dora Plaisted and Ruth Plaisted. Dora, nearly 100 years old, had a life use therein and Ruth owned the remainder interest (Dora has since died and Ruth is executrix of her will.) The property was described in the contract as 'the Dora Plaisted Farm, except a parcel of land lying at the rear of the Ruth Plaisted cottage (which is now 100 feet in depth) (100 50 )'. Plaintiff's survey showed that part of the porch of Ruth's cottage encroached upon the farm. The parties had negotiated only through the realtor, Benson. Plaintiff advised Benson that he was willing to resolve the problem by giving Ruth land around her porch and space for a septic tank, but she preferred to disavow the contract....